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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

George H. Swogger,

Plaintiff

 v.

Sgt. Scott Yonak, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-01051

Judge Frost

Magistrate Judge Abel

Report and Recommendation

Plaintiff George H. Swogger, a former state prisoner, brings this action against

defendants under 42 U.S.C. § 1983 alleging violations of his Fourth, Eighth and

Fourteenth Amendment rights and for negligence, gross negligence, and negligent

infliction of emotional stress. This matter is before the Magistrate Judge on defendants

Scott Yonak, Michelle Miller, and the Ohio Department of Rehabilitation and

Correction’s (“ODRC”) unopposed January 17, 2012 motion to dismiss. 

I. Allegations in the Complaint

On August 10, 2011, plaintiff George H. Swogger, a prisoner at the Belmont

Correctional Institution, was subjected to a pat down search as he was exiting five

house. Contraband was found on plaintiff, and he was taken to another area for a search

of his person. Defendants Yonak and Robinson took plaintiff to the “quiet area” of the

dorm and performed a strip search of plaintiff. The complaint alleges that the “quiet

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area” is not an enclosed place. While plaintiff was searched, anyone in the area could

see plaintiff. Plaintiff was forced to stand in the open area undressed for 15 minutes in

full view of female staff and other inmates. Plaintiff suffered mental anguish and

emotional distress from being displayed in this state of undress.

II. Arguments of the Parties

Defendants argue that plaintiff’s action should be dismissed because prisoners

are barred from bringing civil actions for mental or emotional injury without a prior

showing of physical injury. Defendants contend that Swogger does not allege that he

suffered any physical injury. Defendants further maintain that the Prison Litigation

Reform Act applies to a plaintiff who filed his case while he was a prisoner even if he

was subsequently released from prison. 

Plaintiff failed to file a response to defendants’ motion to dismiss. 

III. Motion to Dismiss

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, a court must construe the complaint in the light most

favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.

Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th

Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982). 

Although the court must apply a liberal construction of the complaint in favor of the

party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513

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F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or

unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.

Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th

Cir. 1971). In reading a complaint, however, a court will indulge all reasonable

inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,

1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the

complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451

F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to

offer evidence to support the claims, rather than whether the plaintiff will ultimately

prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court

cannot consider extrinsic evidence in determining whether a complaint states a claim

upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.

IV. Discussion

The Prison Litigation Reform Act states in pertinent part:

No Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical injury.

42 U.S.C. § 1997e(e). The Sixth Circuit requires that a plaintiff seeking relief based on

emotional damages must show that he also suffered a physical injury that is more than

de minimis to state an Eighth Amendment claim. Here, plaintiff fails to alleged that he

suffered any physical injury. Jarriett v. Wilson, 162 Fed. Appx. 394, 400 (6th Cir. 2005).

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Because Swogger has not alleged that he suffered a physical injury as required by

section 1997e(e), his Eighth Amendment claim should be DISMISSED.

Defendants’ motion to dismiss does not address plaintiff’s remaining claims for

violations of his Fourth and Fourteenth Amendment rights and for negligence, gross

negligence, and negligent infliction of emotional stress. However, under 42 U.S.C.

1997e(c)(1), “[t]he court shall on its own motion . . . dismiss any action brought with

respect to prison conditions under section 1983 of this title, . . . by a prisoner confined in

any jail, prison, or other correctional facility if the court is satisfied that the action is

frivolous, malicious, fails to state a claim upon which relief can be granted. . . .”

Plaintiff’s claims based on negligence fail. The Supreme Court has held that the

Due Process Clause is not implicated by a negligent act of an official causing

unintended loss of or injury to life, liberty, or property. Daniels v. Williams, 474 U.S. 327,

328 (1986). “Negligence does not suffice to state an access to the courts violation under §

1983.” Garrison v. Corr, 26 F. Appx 410, 411 (6th Cir.2001) (citing Collins v. Harker

Heights, Tex., 503 U.S. 115, 127–30 (1992)). Plaintiff’s claim based upon the Fourth

Amendment also fails. The Supreme Court has ruled that visual body cavity searches

are constitutional. Bell v. Wolfish, 441 U.S. 520, 558-60 (1979). 

V. Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that

defendants Scott Yonak, Michelle Miller, and the Ohio Department of Rehabilitation

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and Correction’s (“ODRC”) unopposed January 17, 2012 motion to dismiss be

GRANTED and that plaintiff’s complaint be DISMISSED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);

United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,

380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not

raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/ Mark R. Abel 

United States Magistrate Judge 

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